Water Taking in Ontario – Phase 2

If you “take water” in Ontario, there is a potential charge for this taking (Ontario’s Water Taking Regulation [O. Reg. 387/04]).  The idea of this user fee for water consumption was to pass some of the costs of water quality management to large users of water.  Further, the thought was, that attaching a fee to water use would encourage conservation of water.  For more information on water takings permits, see our Environmental Minute, “Do You Need a Permit to Take Water?”

Phase I of the water taking program in Ontario affected only about 100 facilities in the Province.  However, as spelled out in the 2012 Ontario Budget, “Implementing Phase 2 of the program will expand the user-pay base and apply the charge to most of the remaining industrial and commercial water users in Ontario.  Some of the affected sectors include construction, petroleum, mining, food production and recreational facilities.  The charge rate to be paid by Phase 2 facilities will be determined as part of the program review.”

So do you need a permit to take water?  If you are not sure or if you have questions about water taking permits, contact Andrew Tymec (atymec@dragun.com) at 519-979-7300.

All Appropriate Inquiry Changes Worth Noting?

The following blog post was submitted by Mark Resch, LPG, a geologist at The Dragun Corporation.

The United States Environmental Protection Agency (USEPA) proposal to amend the All Appropriate Inquiries (AAI) regulation (40 CFR Part 312) was not the type of riveting news that’s going to make great cocktail conversation. But it’s worth noting that the EPA is proposing to adopt the use of ASTM 1527-13, the “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process.” What is interesting (or not) is that EPA is proposing to allow the use of the new 1527-13 or the current 1527-05. So, which standard is the right version to use for your environmental due diligence?

The recent EPA announcement aside, it’s worth looking at the ASTM 1527-13 nuances. At the time of this writing, 1527-13 has not been released and is not “official.” But some of the changes from the current standard (1527-05) have been discussed widely among environmental peers.

Key changes to 1527-13 include: (1) revised definitions for Recognized Environmental Condition (REC), Historical REC (HREC), and a new definition Controlled REC (CREC), (2) incorporating the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) definition for a “release,” (3) the recommendation that regulatory agency files be reviewed if the target property or an adjoining property is identified in a regulatory agency record, and (4) a new definition for “migrate” that includes vapor.

The proposed changes are relatively minor and represent good environmental practices that, when necessary, are already being performed by competent environmental professionals using 1527-05.

You have to wonder if the introduction of this updated and new standard is just a change for change sake. It would appear that having two “acceptable” standards only blurs the line further as to what constitutes AAI and, therefore, the innocent landowner defense. With this blurring of the line, for providers of environmental due diligence, it might be better to double down on the quality review process… and make sure the E&O insurance is paid up.

All this boils down to this: it’s not about which standard is correct, but whether you are receiving professional advice from a trusted environmental professional and trusted legal counsel.

If you have any questions, or need assistance with environmental due diligence, please feel free to contact our office at 248.932.0228

If you would like to see the announcement follow this link http://www.gpo.gov/fdsys/pkg/FR-2013-08-15/pdf/2013-19763.pdf

EPA Issues Criminal Enforcement Alert

“Criminal Enforcement Alert, EPA Targets Clean Water Act Crimes – Illegal Pollution by Animal Confinement Operations Punished by Fines and Incarceration”… that is the title of the July bulletin from the Environmental Protection Agency (EPA).

What is the intent of this alert?  According to the EPA, “The intent of this EPA Criminal Enforcement Alert is to increase public awareness of the consequences of knowing or negligent CWA (Clean Water Act) violations by animal confinement operations.”

The EPA points out in this bulletin that criminal enforcement is reserved for the most serious violations of environmental law.  I think it’s safe to say that most of those in the environmental compliance community support going after the bad actors – in any industry.  The “devil in the details” of this, of course, is differentiating bad actors from overzealous enforcement.

With this said, make sure you understand where the potential pollutants on your farm are located and manage this risk proactively.  And if you are the target of EPA enforcement, make sure you are well represented by trusted legal and environmental counsel – both should be knowledgeable and skilled in addressing such matters.

If you have questions, need assistance, or would like to discuss a peer review, please feel free to contact our senior environmental scientist, Jeffrey Bolin at 248-932-0228.